If you have been involved in a family law dispute, you may have heard of joint managing conservatorship. You may be wondering what exactly joint managing conservatorship is and what it means for you in your family law case.  Conservatorship relates to rights, and joint managing conservatorship is presumed to be in the best interest of the child. This is a rebuttable presumption, meaning  a court can find that joint managing conservatorship is not in the best interest of the child. For example, if one parent has a history of domestic violence in the past two years, the court cannot name that parent as a joint managing conservator.  A parent might be able to overcome the presumption by showing the other parent has a history of substance abuse or has been absent from the child’s life.  In those situations, the court may find it in the child’s best interest to name one parent as the managing conservator and the other parent a a possessory conservator.  A managing conservator has far greater rights related to the child than a possessory conservator.

Parents often confuse conservatorship with possession. It is important to understand that joint managing conservatorship does not mean the parents spend equal time with the child. Rather, it refers to the rights and decision-making ability both parents have regarding the child. This includes legal, educational, medical, and psychological decisions. Joint managing conservatorship does not mean the parents have equal rights.  The rights can be allocated in a number of different ways.  Rights can be truly joint (requiring joint agreement), they can be independent (allowing each parent to act independently, possibly with prior consultation or notice required), or they can be exclusive (where one parent has that right but the other does not).

When parents are named joint managing conservators, it is common for one parent to be given the exclusive right to determine the primary residence of the child (usually within a certain geographic area.) This parent is referred to as the “primary parent” or “custodial parent,” and that parent usually receives child support payments.  The “primary” designation can carry a lot of legal significance beyond just the current custody order, and it is important to understand the implications before agreeing to give the other parent the primary designation in an order.  If neither parent is given the exclusive right to designate the primary residence (which is common with 50/50 possession schedules), the residence of the child with both parents is restricted to a certain geographic area.

 

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Following a divorce or child custody case in Texas, you may be struggling with the concept that you’re no longer able to see your child every day or whenever you desire. While this is certainly an adjustment, an added complication to this situation can occur when the other parent is not following the possession order. It is extremely frustrating when a parent expects to see his or her child, only to be disappointed at the time of the exchange. While co-parenting and reaching amicable agreements are encouraged, this may not be an option for some parent. So, what are your options if the possession order isn’t being followed?

Modification

If your possession schedule has become unworkable or is consistently disregarded by the other parent, modifying the possession order could be an appropriate option for you. If a parent is consistently failing to exercise possession at a specified time, or consistently keeps the child beyond their possession, modifying the schedule may offer long term relief for you. While a modification will not hold a parent responsible for disobeying the possession order, it will give you an opportunity to create a new possession schedule that works better for the child and the parents. A modification is also appropriate if the parents previously agreed to follow a different schedule but are no longer able to cooperate and agree. If this happens, asking the court to modify the possession order so it reflects what the parties consistently followed previously may be in the child’s best interest.

Enforcement

If the parent disregards the court’s possession order, or interferes with your ability to exercise your court ordered possession, seeking an enforcement is also an option. An enforcement asks the court to hold one party in contempt for disobeying the court’s order. To have a successful enforcement, you must have a clear and concise order and be able to articulate how the other party failed to comply with the order (i.e.: didn’t appear at the scheduled exchange or picked up the child from school so you could not exercise your possession.) If the court finds the other parent is in contempt, the court has multiple forms of relief to offer the other parent. The court can order additional possession time, order the payment of court costs and attorney’s fees, and even order confinement for a parent that continuously fails to comply. While seeking that the parent of your child be held in contempt seems very harsh, it may be the appropriate remedy if other options and attempts to co-parent have failed.

Writ of Habeas Corpus and Writ of Attachment

If the other parent is keeping your child from you for a continuous period of time beyond their ordered possession, seeking a writ of habeas corpus is the best way to have the child returned to you. If you’re seeking a writ of habeas, you must do so during your ordered possession time. While these hearings are typically expedited, they are not immediate. If a parent is keeping the child in excess of the court ordered possession, but returns the child within a relatively short period of time, an enforcement is the better option for you. The writ of habeas orders the parent to bring the child to court so that the court can determine who has the right of possession to the child. If you fear your child is in danger, you and your attorney may also want to seek a writ of attachment. A writ of attachment orders the parent to surrender the child to law enforcement so that the child may be returned you, instead of having the parent appear at a hearing with the child at a date and time in the future.

If your possession order is not being followed, you have rights and options available for relief. To determine what relief is most appropriate for your situation, you should consult with an attorney. The attorneys at The Draper Law Firm, P.C. are here to help you navigate through this difficult time and to fight for your parental rights.

-Blog post by Shmyla Alam

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Texas is a community property state, meaning all property acquired during the marriage by either spouse is presumed to be part of the community and, therefore, subject to division by the court in a divorce.  But what about debts, such as student loans?  In Texas alone, almost 3.4 million people have unpaid student loans that total more than $111 billion.  Understandably, a lot of people fear becoming responsible for their ex-spouse’s student loans post-divorce.

If you or your spouse obtained a student loan before the marriage, the student loan is considered a debt of that person’s separate estate, and the person whose name is on the loan will be 100% responsible.

If you or your spouse obtained a student loan during the marriage and used the money for education-related costs, the person whose name is on the loan will be 100% responsible.

However, if you or your spouse obtained a student loan during the marriage, and evidence shows the loans paid for living expenses that benefited both parties, the debt could be considered part of the community estate.  In this case, it will become one of many factors that are taken into account in dividing the entire community estate.

What about reimbursements?  Many people want reimbursement for the payments made on one spouse’s student loans during the marriage.  Texas law clearly prohibits reimbursement claims for payment of student loans owed by one spouse.  Much like buying groceries or paying for gas, these payments cannot be reimbursed.

Refinance student loans are another issue that arises during a divorce.  If you or your spouse co-signed student debt, including during a refinance, the co-signer becomes responsible for that debt.  In a situation where both parties’ names are on the student loan, the loan will be considered part of the community estate.

If you are going through a divorce and you have student loans, you should also speak with a financial planner because your options for repaying student loans may change post-divorce.  It is also important to have an attorney knowledgeable about property and debt issues.  The attorneys at The Draper Law Firm are ready to help you be proactive in navigating these issues.

Blog post by Samantha Mori

 

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In Texas, an adult who is the stepparent of a child may file for adoption. This post will answer some common questions that arise when a person is considering initiating a stepparent adoption.

 Who Can File and Where?

In Texas, an adult who is the stepparent of a child may file for adoption. When filing for stepparent adoption, you must include your spouse in the petition. The petition for adoption must be filed in the county where the child is residing or where the petitioners reside. (The parties who file the petition and are requesting the adoption are referred to as the petitioners.)

How Do I Start a Stepparent Adoption?

There are two types of stepparent adoptions, and it is highly recommended that you hire an attorney to help you navigate the process in either case. The type of stepparent adoption will have a large impact on the process you will need to go through to adopt your stepchild. These two types are as follows:

  1. The child’s other parent is alive and there is no court order terminating the parental rights of that parent to the child.  In this instance, you will need to file an Original Petition to Terminate Parent-Child Relationship and for Adoption. Depending on whether or not the biological parent is willing to voluntarily relinquish parental rights, these types of cases can be simple or much more difficult.
  2. The child’s other parent is no longer living or there is a court order terminating the parent’s parental rights to that child.  In this case, you will only need to file an Original Petition for Adoption.  These cases are generally quick and easy because you do not have to deal with the termination component.

It is vital that you file the proper documents in order to have your stepparent adoption approved by the court. As you can see, the other parent must either be no longer living or must have his/her parental rights terminated before you can proceed with adopting the child.

What Other Steps are Involved?

In order to complete a stepparent adoption, the stepparent must complete a background check.  That process is cheap and easy.  You simply make an appointment at one of the approved locations, have your electronic fingerprints taken for the background check, and have the results sent to your attorney.  The petitioners must also complete an adoption home study with someone who is qualified to conduct home studies.  The evaluator will file a report with the court indicating whether or not he recommends approving the adoption.

Will We Need to Appear in Court?

Yes. Both petitioners must appear in court (whether personally or by zoom, if required due to COVID-19 or if allowed by the court). If the child that is to be adopted is 12 years of age or older, the child must also attend the adoption hearing.  (Usually, because adoptions are such a joyous occasion, the child attends no matter the age.)  There is an exception if you are able to show it would be unduly difficult for one of the joint petitioners to attend the hearing. In that case, the court may waive the requirement for both petitioners to be present.  Additionally, the court may also waive the requirement for the child to attend, if waiving the requirement would be in the best interest of the child.

Does My Stepchild Have to Consent to the Adoption?

If the child who is to be adopted is 12 years of age or older, the child must consent to the adoption. The child’s consent can be given in court at the adoption hearing. If the child is not attending the adoption hearing, the child can provide consent in writing.

Must My Stepchild Live with Me Before I Adopt?

Yes. The law provides that a child must live with the adopting petitioner for at least six (6) months before the court may grant an adoption. This requirement can be waived if the petitioners show that the requirement is not in the best interest of the child.

Navigating a stepparent adoption can be a bit confusing and overwhelming, and there are a number of hiccups that may arise during the process. To help ensure your stepparent adoption goes as smoothly as possible, contact a family law attorney to assist you with the process. The attorneys at The Draper Law Firm are ready to assist you in the adoption process.

Blog post by Sarah Marrone

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Judges carefully consider the evidence and arguments presented at a trial before making a final decision, but this doesn’t mean that a judge’s decision is always accurate. For this reason, you still have options you can pursue in order to urge the judge to make a different decision in your case. There are different types of relief available if you believe the Court has made an erroneous decision. Below, we discuss your options for relief, and when each type of relief is most appropriate in your case.

Motion for New Trial

If you’re generally dissatisfied with the Court’s decision, or for one reason or another, the opposing party obtained a default judgement against you, a motion for new trial is likely your best option for relief. A motion for new trial must be filed within 30 days from when the Judge has signed the order or judgment, and this time cannot be extended. Because time is of the essence, it is important to discuss this option with an attorney as soon as possible.

A motion for new trial asks the court to give you a second opportunity to present your evidence and legal arguments so that the outcome will be more equitable. This is done by filing a motion that points out the legal errors of the judge’s ruling. If the motion is granted, you will be given an opportunity to present testimony and evidence at a new trial before the judge makes a new ruling. However, there is no guarantee that a new trial will result in a different decision from the court.

A motion for new trial is also a useful tool in extending deadlines for appeal, so even if the likelihood of a judge granting the motion is low, there still might be an important reason for filing.

Motion to Reconsider

If you have qualms with a specific ruling the court has made, or you believe the judge should have made a different decision based on the evidence and arguments that were previously presented at trial, a motion to reconsider is the most appropriate form of relief. Like a motion for new trial, a motion to reconsider specifically states the errors of the judge’s decision and provides legal arguments and support for why the court’s decision is erroneous. This motion does not ask the court to give you a second or new trial, but rather, a motion to reconsider asks the court to reconsider its ruling based on the evidence and record that already exists from the trial. This relief is most appropriate when you believe the court’s decision should be different based on the evidence and arguments that were presented at the final hearing. You’re not seeking an opportunity to present new evidence. Instead, you will use the record from the trial to illustrate why the Court should have come to a different decision based on the applicable law.

Appeal

If neither a motion for new trial nor motion to reconsider are successful, the only way to overturn the trial court’s ruling is through an appeal.  Appeals are an extremely slow process and can take a year or more before a decision is made.  Depending on the circumstances, an appeal might be appropriate in your case, or you may be better off waiting and filing a modification down the road (if the disputed issues relate to custody or child support).

Blog post by Shmyla Alam

 

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The holiday season is a special time for getting together with loved ones to make lasting memories with your children.  This is especially important for divorced families.  If you find yourself recently divorced, in a challenging co-parenting relationship, or trying to blend families due to a new relationship, the holiday season may add a layer of stress for you.  Here are some tips to help you manage the holiday season so that you and your child can experience the wonder and joy that this time of year brings.

Tip One: Review your possession order.  You may have standard possession order for holidays, or you may have a customized order.  There are numerous ways to split time with the child during the holiday season with the other parent, and you want to be sure you understand exactly what your schedule entails.  Knowledge is power, and the more you know, the less surprises arise.  It can also help you talk to your child about who the child will be with at specific times during the holiday season.  For example, if you do not have your child this year on Christmas, you can let your child know that you will celebrate together on a different day.

Tip Two:  Talk about gifts with your co-parent.  By doing this you can avoid the child receiving multiples of a particular item.  You should discuss this with your co-parent and other members of your family too.  If the child is with the other parent on Christmas but Santa visits your home, too, it will be much less confusing to the child if Santa leaves different presents for the child at each house.  It will also save you from having to explain what happened to your child because we all know Santa knows and sees everything.

Tip Three:  Keep exchanges of the child stress free.  If you now that someone in your life is a trigger person for the other parent, then keep them out of the child exchange process.  For example, if you are in a new relationship and you know your new person and the other parent do not get along, your new person should not be present at the exchange.  If your new person must be there, having the new person stay in the car or in the house but out of sight is best.  If you and the other parent are having a difficult time, then you can designate a competent adult to handle the exchange for you (assuming your order provides for that).  If you decide to do this, let the other parent know who will be picking the child up instead.

Tip Four: Start a new tradition.  If this is your first year to navigate the holiday season while splitting time with the child with the other parent, this is particularly important and can be a lot of fun.  Children are wise, and they know things are not the same now that you are divorced.  Start making new memories.  Have a cookie decorating contest with your child, make homemade pizzas, get funny slippers to wear around the house, start an ornament collection, or write letters to your child  about things that happened during the year and put it in the child’s stocking.  If your child is old enough, let your child choose a tradition he or she would like to start.

Tip Five: Take care of yourself.  While it is important to help create new memories for your child, you also need to take care of yourself and plan things to do when you are not with your child.  You may find that you are anxious and sad when your child is not with you, especially on the holidays.  It is important to plan some fun things that you enjoy so that you do not focus on the fact they are not with you.  Remember, you still get to celebrate with your child, just in a new and different way.

Blog post by Brandi Crozier

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A recent post in a Texas family lawyers group asked attorneys to share “things you think you wouldn’t have to tell your client not to do during a family law case, but apparently you have to.”  Here are a few of my favorites (and yes, these things have actually happened):

  1. Don’t get someone pregnant (or get pregnant) during your divorce.
  2. Don’t neglect to tell your lawyer that you breed tigers as a hobby and that they are allowed to roam freely throughout your compound, particularly when you are fighting for the exclusive right to designate the primary residence of the child.
  3. Don’t ever testify “I have absolutely NEVER…” when you did and you’re about to be impeached on it.
  4. Don’t tell the judge “you don’t have the b@lls to put a white woman in jail” and then be surprised when he does.
  5. Don’t take a shot of liquor during your zoom hearing.
  6. Don’t give the judge the finger after he mutes you for talking too much during a zoom hearing.
  7. Don’t send a letter to the judge (and don’t have your church do a letter writing campaign to the judge either).
  8. Don’t tell your lawyer that you most certainly did NOT break into your ex’s house and take stuff right before opposing counsel hits play on a recording of you breaking into your ex’s house and taking stuff.
  9. Don’t get drunk when the kids are with you.
  10. Don’t text the opposing party about what your lawyer said (because it’s almost never what your lawyer actually said).
  11. Don’t e-mail opposing counsel.
  12. Don’t show up to court drunk or high.
  13. Don’t show up to court with a box of sex toys and expect your attorney to introduce them as evidence.
  14. Don’t lie, especially when you put the truth on social media.
  15. Don’t roll a joint and light it up during a zoom hearing.
  16. Don’t threaten to rip off one of the implants she got during the marriage to get your “half.”
  17. Don’t smoke (or vape) in court proceedings, even if they are virtual.
  18. Don’t inject your child with animal grade antibiotics.
  19. Don’t walk around in your underwear during a zoom hearing.
  20. Don’t get engaged to someone else before your divorce is finalized.
  21. Don’t e-mail the court coordinator to complain about how the judge’s ruling is going to get your kids killed.
  22. Don’t record your child.  You think it’s great evidence, but it almost always makes you look bad.
  23. Don’t sext your new paramour unless you want to produce it in discovery.
  24. Don’t try to impress the judge with your cleavage.
  25. Don’t send out formal wedding invitations for your marriage to Wife #2 when your marriage to Wife #1 has not yet been dissolved.
  26. Don’t get your wife’s sister pregnant.
  27. Don’t sit on the toilet while on a zoom hearing.
  28. Don’t bring your new girlfriend to court for your enforcement hearing and let her sit on your lap in the courtroom.
  29. Don’t accuse your wife of assault and then beg her for sex via text message.
  30. Don’t throw your shoes at the judge.
  31. Don’t give your shoes away during the lunch break and come back to trial shoe-less.
  32. Don’t send e-mails or texts to the opposing party saying you “don’t give a f–k what the judge said.”
  33. Don’t wear your Rolex to a child support enforcement hearing.
  34. Don’t leave a message on opposing counsel’s voicemail screaming that the judge can “go suck my knob” numerous times.
  35. Don’t have sex with the opposing party the night before your trial.
  36. Don’t have sex with the person against whom you are seeking a protective order, even if that person promises not to tell.
  37. Don’t get pregnant by someone else in the middle of your divorce and then sleep with your soon-to-be-ex-husband to make him think it’s his.
  38. Don’t change your password to “mywifeisawhore” or anything else you would not want to say out loud while testifying in court.
  39. Don’t set a hearing where you are requesting supervised-only access for your husband and then leave the kids with him the night before so you can go shopping for a new dress to wear to said hearing.
  40. Don’t bring a date to the final  hearing and make out with her in the hallway on a break.
  41. Don’t tell a judge “I’m tired of talking to you” during the hearing.
  42. Don’t duck out of the camera’s view to take puffs on a cigarette during your zoom hearing and then lie to the judge when he confronts you about the cloud of smoke over your head.
  43. Don’t start fertility treatments with your fiancé when you are set for trial in your divorce and one of the stressors in your marriage was infertility.
  44. Don’t leave a voicemail telling your two small children to call their mom a whore, b*tch, and slut over and over, laughing while they say it.
  45. Don’t change the name of the contact in your phone from “Wife” to “B*tch from Hell”(or “Satan’s Little Helper,” “Psychopath,” or “Heinous Monster”), especially if your children talk to her on that phone.
  46. Don’t upload the nude pictures of your spouse to the parenting portal to prove she sent them to you via text.
  47. Don’t appear shirtless for a zoom hearing.
  48. Don’t request a drug test of the other side if you’re on drugs, too.
  49. Don’t read the pleadings to your kids.
  50. Don’t cohabit with a registered sex offender during your custody case and forget to mention it until you are on the stand.
  51. Don’t think that just because you blocked your ex on social media those posts won’t find their way into court.
  52. Don’t write a check to your girlfriend and write “great sex” in the memo line when you are married to someone else.
  53. Don’t buy a house or start a business with your new love while your divorce is pending.
  54. Don’t drive your spouse to the sex club and then complain in court about the fact that she went to the sex club.
  55. Don’t storm off the stand after the judge tells you it is his turn to talk saying “no man is ever going to tell me what to do again” and then tell everyone in the hallway the judge is sexist.
  56. Don’t refer to your husband as a sperm donor.
  57. Don’t give the court an e-mail address that has the words “bigblackc*ck” in it.
  58. Don’t bring your mistress with you to mediation and look appalled when the mediator and your attorney ask her to leave.
  59. Don’t shoot your spouse.
  60. Don’t sleep with your husband’s coworkers.
  61. Don’t do “a little bit of cocaine” on the weekends or on your birthday.
  62. Don’t put a tracking device on the opposing party’s vehicle.
  63. Don’t forget to shower and wear clean clothes before court, especially if you are trying to argue you are not a filthy hoarder whose home will endanger the children.
  64. Don’t complain your wife is having an affair if you are, too.
  65. Don’t call your children’s mom a whore, even if she is.
  66. Don’t ask the judge to award you all of the intimate photos and videos you took of your wife because you consider them to be your property.
  67. Don’t wear workout clothes to court.
  68. Don’t marry a woman whose rights were just terminated by CPS to her own children while you are in the middle of a custody case involving your own.
  69. Don’t tell your teenager about your infidelity in the same conversation where you and your spouse are telling her you are divorcing.
  70. Don’t forget to wear panties to court and flash the court coordinator.
  71. Don’t get drunk in the parking lot before your hearing.
  72. Don’t buy a house with your mistress before the divorce is final with community funds.
  73. Don’t call your mistress as witness #1 as to why you should have custody of your children.
  74. Don’t wear your “world’s greatest dad” t-shirt to your enforcement hearing.
  75. Don’t post “f–k the judge” on Facebook.
  76. Don’t go to your kids’ game and brag to everyone there about the lies you are going to tell about your husband in court.
  77. Don’t make a video saying the judge can eat booty like groceries and then post it on social media during your trial.
  78. Don’t ask the bailiff to pass your number to another offending parent while waiting for your CPS case to start.
  79. Don’t be laying in bed during your zoom hearing.
  80. Don’t marry your pregnant mistress while your divorce is pending and post pictures of the wedding and marriage license on Facebook.
  81. Don’t wear your gun to a divorce hearing.
  82. Don’t wear flip-flops and super short cutoff shorts to court and then yell at your lawyer in the hallway because you didn’t know you shouldn’t wear those things.
  83. Don’t strip in a public bar to celebrate your birthday, regardless of whether or not your kid was at said bar.
  84. Don’t bring home THC infused lube from Colorado and try to have a bunch of relations with your soon-to-be-ex as an attempt to make her test positive for weed.
  85. Don’t wear a necklace with the letters spelling “b*tch” to your custody hearing.
  86. Don’t e-mail the judge a poem where you tell him you’re smarter than him and could have passed the bar if you wanted to without going to law school.
  87. Don’t look at the judge and say, “I am a sweet person d*mnit.  You have got to talk some sense into these vindictive angry emotional women.”
  88. Don’t wear a sequin tube top, spandex and body glitter to court.
  89. Don’t let your key witness at a custody hearing wear a shirt that says “Sexy B*tch” on it.
  90. Don’t no-show for the second scheduled deposition and let your friends tag you on Facebook on a pub crawl at the time you should have been there.
  91. Don’t play the Tammy Wynette song “D-I-V-O-R-C-E” on your iPhone when the judge leaves the courtroom.  He can still hear it from his chambers.
  92. Don’t use videos and photos of your soon-to-be-ex as revenge porn.
  93. Don’t tell your lawyer you don’t do drugs and then admit on the stand you smoked meth a few times with your spouse last month.
  94. Don’t take pictures in court and post them to Facebook during your trial.
  95. Don’t sign an affidavit saying you caught your ex smoking meth and then tell the judge at the emergency hearing that you never told your lawyer you saw her do drugs.
  96. Don’t post on Facebook what a great deal you got in mediation and what a “f-ing loser” your ex is when he hasn’t yet signed the mediated settlement agreement.
  97. Don’t update your Facebook profile to show off your new breast augmentation prior to your hearing on interim attorney’s fees.
  98. Don’t testify you don’t have any idea how you tested positive just before you pass out on the witness stand.
  99. Don’t complain that your soon-to-be-ex was a stripper if you met her in a strip club.
  100. Don’t testify about all of the horrible things your husband did to you and then get mad the judge gave you exclusive use of the house and didn’t order you to live together, yell in the courthouse that “Jesus doesn’t want us to get divorced,” and then promptly dismiss your case.

The next time you find yourself involved in a family law proceeding, keep this list handy!

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Many families find themselves faced with the challenges of separation and divorce. Divorce can be a very stressful time in someone’s life. It is often said to be one of the most difficult transitions a person may face. One way to lessen the stress of the divorce process is for you and your spouse to divorce amicably. Here are five tips to assist anyone who may be interested in proceeding through the divorce process in an amicable manner:

  1. Find an attorney that understands your goal of an amicable divorce. Selecting your counsel is one of the most important decisions you will make during the divorce process. If you would like to minimize the contention during your case, you must ensure you hire an attorney who understands your goals and is capable of keeping your desire for an amicable resolution at the forefront of the process.
  1. Utilize a waiver of service. A waiver of service is a document that can be signed by your spouse after receiving a copy of the Original Petition for Divorce. If the waiver of service is properly executed, you will not have to have your spouse personally served with the petition. No one wants to be personally served. Many individuals going through divorce are served with papers at their place of work or home. This can be embarrassing and will likely make them angry. If your goal is an amicable divorce, it is usually preferable to begin by providing your spouse with a waiver of service to sign. If they refuse to sign the waiver of service, your attorney can then have your spouse personally served.
  1. Go to mediation. Many people are adamant they do not want their case to go to mediation. The general negative feeling towards mediation is often unwarranted. Most courts now require parties to attend mediation prior to the case proceeding to trial. This is because many cases can be resolved by utilizing an impartial third party to help the parties reach a resolution. Settling in mediation will save both sides money and lessen the stress that accompanies trial. In most cases, mediation leads to a better resolution for both sides. This is because mediation allows the parties and attorneys to be creative when creating a solution. When attending mediation be sure you go into the process with an open mind and a positive attitude. If you decide the process will fail before you even begin, the process is more likely to fail. Try to keep the focus on your goals and reaching a resolution both you and your spouse can live with. Remember, no settlement agreement is ever perfect for either side, but it is usually better than what the outcome would be at trial.  Even though it may be tempting, it is not a good idea to go to mediation without an attorney.  The mediator’s job is to get a deal done, and she cannot give you legal advice.
  1. Consider seeing a therapist. The end of a marriage is a very emotional transition for everyone involved. It affects the parties and the children. It is important to be aware of your emotional state and to recognize when you may need the assistance of a therapist or counselor. Many individuals need to be able to speak to someone such as a counselor or therapist to help them through this transition. Dealing with your emotions in a healthy way will assist you in keeping the divorce process amicable and preventing resentment. Divorces surrounded by resentment and anger tend to take longer to resolve and are ultimately more costly for both parties.
  1. Focus on the future. Remember that this is a time of transition. You are transitioning out of your marriage and into the next phase of your life. Focusing on the future is even more important to those who have children. If children are involved, you will continue to have a relationship with your spouse even after the divorce is finalized. There is no better time than the present to begin practicing communicating with the other parent. Even if you and your spouse were not ultimately successful long-term partners, you can still be successful co-parents. Parents who divorce amicably are typically better equipped down the road to resolve parenting disputes without the court intervening. Rather than getting hung up on the minutia, focus on your overall goals. If you hire an attorney who understands your goals, your attorney will be able to assist you with staying focused on what is most important.

Take the time to discuss these points when consulting with an attorney. At The Draper Law Firm, we understand this is a difficult time for you and your family and we are ready to help guide you through the process.

Blog post by Sarah Marrone

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Depending on the circumstances of your divorce or family law case, you may hear the Latin terms “amicus” and “ad litem” referenced by the attorneys or the judge in your case. We’re here to help clarify the purpose of an amicus attorney and an ad litem and explain when it would be beneficial to have either one appointed to your case.

The word “amicus” means “friend of the court.” When an amicus attorney is appointed in your case, it is important to know that the amicus does not represent any of the parties or children involved in the case. Rather, the purpose of an amicus is to gather information and help the court determine what is in the best interest of the child. The amicus will not only interview the parties and the children involved but will likely gather information from any other individuals that have valuable or relevant information. This can include teachers, counselors, doctors or other family members that are not parties to the case. This process allows the amicus to gather a significant amount of information, which can include evidence that may not be admissible in a hearing. Requesting that an amicus be appointed in your case is beneficial when the case is very contentious or involves a question of whether a party may be causing significant impairment or harm to a child.

“Ad litem” means “to represent in litigation.”  There are two types of ad litems we see in family law cases: an attorney ad litem and a guardian ad litem.  Unlike an amicus attorney, an attorney ad litem is appointed to represent the interests of a party.  In Texas, a Court may appoint an attorney ad litem when a party is not capable of representing himself or when a party has been served by publication.  An attorney ad litem is sometimes appointed to represent the child and advocate for what the child wants.  In cases involving CPS, the Court will always appoint an attorney ad litem in order to ensure that the child’s interests are protected.  A guardian ad litem may or may not be an attorney and is appointed to represent the best interests of a child.  Occasionally, a court will appoint an attorney in the dual role if attorney ad litem and guardian ad litem for a child.  In the event there is a conflict between what the child wants and what is in the child’s best interest, both need to be appointed.  CASA often serves as the guardian ad litem for the child in CPS cases in certain counties.

If your custody matter is complex, an amicus attorney or an ad litem may be an important tool to protect the child’s interests. Contact the attorneys at The Draper Law Firm, P.C. We’re ready to help.

Blog post by Shmyla Alam

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Many times I hear potential clients mention the possibility of attending mediation with the opposing party as an alternative to hiring attorneys.  These people generally seem to think that not hiring an attorney is the best way to keep things amicable with the other side.  Unfortunately, these attempts to keep things amicable or keep costs down can often lead to serious problems down the road.

Mediation is a great tool to help get cases resolved when they cannot be settled informally.  Even though many mediators are attorneys, the mediator cannot give legal advice to a party during mediation.  The mediator’s job is to get an agreement reached, not advise the parties as to whether or not a particular agreement is a good idea.  When a party attends mediation without an attorney, that party likely does not know the law, what he or she is entitled to under the law, what is standard and what is not, or if he or she may be making a mistake that can never be fixed.

Hiring an attorney does not prevent you from reaching amicable agreements with the other side, but it is the best way to ensure you are protecting yourself.  The attorney can help you think of creative solutions, will help you make sure you are not forgetting to cover important issues in your agreement, and will advise you when you should say no.   If your goal is to try to reach amicable agreements with the other side, be sure to pick an attorney whose philosophy aligns with yours and who seems on board with helping you accomplish that goal, if at all possible.

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